By Jennifer A. Tallon, Sruthi Naraharisetti, Viet Nguyen, Lisa Bailey Vavonese, and Michael Mrozinski

Recognizing the “obvious truth” that defendants cannot be assured a fair trial without representation, the Supreme Court has held that the right to counsel guaranteed by the Sixth Amendment requires states to provide a lawyer if a defendant cannot afford one. However, in 42 states and the District of Columbia, individuals experiencing poverty are charged a fee for invoking their Sixth Amendment right to counsel (hereafter referred to as “defender fees”). While defender fees are a marginal contributor to legal system fines and fees imposed on individuals, these fees are unique amongst the larger universe of fines and fees insofar as they essentially impose a fee for a Constitutional guarantee. Although there is a growing body of research on the use and impact of legal system fines and fees broadly defined, specific attention to defender fees remains underexplored within this literature. Policymakers and practitioners can help to ensure quality representation through an evidence-based approach to the problems and potential solutions associated with defender fees. To fill this research gap and start building the necessary evidence base, the Center for Justice Innovation (Center) partnered with the National Legal Aid & Defender Association (NLADA) to conduct two national surveys to document the uses and perceptions of defender fees among (1) public defense attorneys and (2) public defense and court leadership. What follows is a summary of those findings and a discussion of potential policy and practice considerations. Findings suggest that public defense attorneys are receptive to exploring policy and practice solutions to mitigate the impact of defender fees. • Most public defense attorneys surveyed for this study opposed the use of defender fees, the most common reason being the collateral consequences experienced by clients. Public defense leaders who responded to our survey5 were more supportive, seeing the benefit of fees in offsetting the costs of the public defense system. • Contrary to prior research, few attorneys in our study reported defender fees negatively impacting the attorney-client relationship. Still, some had witnessed clients waive their right to counsel because they could not pay an upfront defender fee. • We also asked attorneys to describe how statutes on defender fees apply in practice, and there was considerable variability, suggesting the need for greater standardization in terms of equipping attorneys with the skills to advocate against the fees and for judges to consistently apply procedural safeguards like ability to pay determinations. • Finally, a secondary survey of public defense and court leaders illustrated jurisdictions’ difficulties tracking data, specifically estimating outstanding debt or the revenue associated with defender fees.

New York: New York Center for Justice Innovation, 2025. 25p.

By

George Christopher Dertadian and Vicki Sentas

The decriminalization of drug possession in varied forms is gaining some traction around the world. Yet prospects for people with lived and living experience of drug use to influence the direction of drug law and policy reform remains bound by stigma and exclusion. This study considers the aspirations for decriminalization of people who inject drugs through 20 semi-structured qualitative interviews with the clients of the Sydney injecting centre. What does decriminalization mean for those most criminalised by drug law and policy? The study found that participants’ views of what is possible for decriminalization are mediated by the same structures and experiences of criminalization, incarceration and exclusion that has disrupted their lives. Participants anticipate the need to mobilise incremental and partial changes associated with de facto models, including fines, increased police discretion (and therefore power) and treatment

orders. At the same time, participants collective imaginary also exceeds the limits of a police-controlled depenalization. We document people’s claims on a future drug policy that speaks to a world without criminal drug offences, punitive controls and the exclusion of people who use drugs from the policy table

International Journal of Drug Policy Volume 135, January 2025, 104657

In September 2024, after 56 years under a sentence of death, Hakamada Iwao was acquitted in a retrial in Japan. This article summarizes what went wrong in his wrongful conviction case and what should be learned from it. The Shizuoka District Court’s retrial decision concluded that police and prosecutors conspired to frame Hakamada with evidence they had fabricated, but there is more to the case than that. This tragedy occurred because of mistakes and misconduct that were exacerbated by underlying weaknesses in Japan’s criminal process. To prevent a recurrence, many things need to change in Japanese criminal justice. The conclusion identifies five priorities for reform.

The Asia Pacific Journal | Japan Focus Volume 22 | Issue 11 | Number 3 | Article ID 5872 | Nov. 30, 2024

By Brandon L. Garrett and Luke Mears

After 44 years in prison for a conviction of rape in the small town of Concord, North Carolina, Ronnie Long was released from prison in 2021. Four months later, the Governor granted him a full pardon on the grounds of innocence. That pardon made it possible to obtain compensation from a state commission, which awarded Long $750,000. This amount was the maximum available under state law that permitted compensation of $50,000 per year of incarceration, but with an upper limit of $750,000. After his exoneration, Long also filed a civil rights lawsuit in federal court. This federal case against the city settled for $22 million in 2024. Long also received $3 million from the North Carolina State Crime Lab as a result of its “role in hiding evidence from Mr. Long and his legal team that proved his innocence.” This substantial settlement made Long Compensating Exonerees in the United States highly unusual among exonerees in the United States. Most exonerees, if they are compensated, received something more along the lines of the $50,000 per year available under the state law that initially compensated Long, and nothing more. Many exonerees receive no compensation at all. Academics have long criticized the traditional lack of compensation for wrongful conviction in the United States. In 1932, Edwin Borchard wrote that the United States needed national legislation regarding compensation for wrongful convictions. For many decades, no such legislation existed, however. Civil rights litigation, like the case brought by Long, was uncommon, and compensation under statutory schemes was similarly rare. This changed once exonerations became much more common, including those based on post-conviction DNA evidence, in the 1990s. In general, many of the exonerees that have received substantial compensation, like Ronnie Long, have brought civil rights lawsuits in federal, not state court. For example, of the first 250 DNA exonerees, 60% received some type of compensation, and of those, half of them obtained it in federal court. However, exonerees are increasingly seeeking compensation under state compensation statutes. In this fact sheet, we describe how compensation for exonerees has evolved in the past several decades, including through successful litigation efforts and through the enactment of compensation legislation, in thirty-nine states, Washington D.C., and by the federal government. We summarize each of these state and federal statutes in the table at the end of this document. To date, 39 states have enacted such compensation statutes, in addition to Washington D.C. and the federal government. In addition, five of the remaining 11 states currently have pending legislation on the issue. The figure below shows which jurisdictions have these statutes currently, and which have legislation pending.

Durham, NC: Wilson Center for Science and Justice at Duke Law, 2024. 20p.

By Sarah Monaghan, Kellyann Bock, Michael Rempel, & Olive Lu

Spanning more than four decades, how has the footprint of New York’s criminal legal system changed? This comprehensive report explores the changing landscape of law enforcement in New York State from 1980 to 2023. It analyzes trends in arrests, prosecutorial declinations, criminal convictions, and sentencing practices, with a focus on regional and racial disparities.

Key Takeaways

● Statewide Arrest Trends

● After varying patterns by charge and region from 1980 to 2010, arrest rates declined significantly from 2010 to 2020, with a modest resurgence from 2020 to 2023.

● Misdemeanor arrests in NYC increased nearly fourfold from 1980 to 2010, dropped by 75% from 2010 to 2020 but rose by 40% from 2020 to 2023.

● Felony arrests decreased across all regions from 1980 to 2020, with a modest uptick in recent years.

● Charge-Specific Arrest Patterns

● Drug arrests in NYC peaked at over 128,000 in 2000, before falling to under 18,000 in 2023.

● Prostitution and fare evasion arrests in NYC saw drastic declines. Prostitution declined 99% from 1985 to 2023, and fare evasion declined 99% from 1994 to 2021, before a 2021-to-2023 uptick.

● DUI remained a leading charge outside NYC, comprising 18%-19% of suburban and upstate misdemeanors in 2023.

● Prosecutorial Declinations

● After changing only modestly until 2017, district attorneys’ offices in the Bronx, Manhattan, and Brooklyn declined to prosecute increasing numbers of low level misdemeanor arrests from 2017 to 2023.

● Select low level arrests for transit fare evasion, prostitution, trespass, and marijuana possession saw especially significant increases in declinations in the Bronx, Manhattan, and/or Brooklyn.

● Sentencing Trends: Jail and prison sentences for misdemeanors and nonviolent felonies peaked around 2000 before decreasing significantly by 2023. Violent felony convictions increasingly resulted in prison sentences across all regions.

● Racial and Ethnic Disparities: While shrinking in some areas since 1980 (e.g., felony arrest disparities narrowed), the study found that sizable Black-white and Hispanic-white disparities on most metrics examined.

New York: Data Collaborative for Justice at John Jay College, 2024. 45p.

By Chris Tully

JENGbA facilitated a series of Listening Days with the families and friends of those impacted by Joint Enterprise (JE). Between October 2023 and May 2024 four such days took place in London, Birmingham, Manchester and Sheffield. The days were attended by 41 family members and friends. Each listening day focussed on five themes; knowledge of JE and when they were first aware their loved ones were to be charged under joint enterprise, the impact on them and their communities following conviction, racism and the gang narrative, role of the media, developing support networks and the fightback against the injustice of joint enterprise. Families reported having little or no previous knowledge of JE and in a considerable number of cases only found out immediately prior to, or during the trial and in some cases not until the judges’ summing up. Inevitably the impact was profound. We heard of the toll on peoples’ physical and mental health, the damage done to family relationships, the breakdown of relationships with neighbours and members of their local communities, often based on stigma, a suspicion that there is ‘no smoke without fire’ and a general lack of awareness amongst the general public of how JE is applied. A lack of independent, accessible information, support and guidance at the point of charging was seen as a fundamental problem for families confronting a trial. Families expressed anger towards the role of the police, often seen as complicit with the Crown Prosecution Service, in using JE as a blunt instrument to “round up” and prosecute young people particularly on the basis of race, class, family name and by dint of neighbourhood. Participants in the conversations also had poor experiences with lawyers citing; a lack of experience, little or no expertise in JE cases, little empathy, a reluctance to share. information and documents. The experiences of trials were predicated on similar concerns. We heard families describe juries who appeared unaware of what guilty verdicts in JE cases meant for defendants, judges who were dismissive of evidence, and concerns that juries rarely reflected the diversity of the cities and towns where trials were taking place. A key concern was disproportionate use of JE in relation to black and racialised communities, working class communities and children and young people. Often underpinning this was the use of a gang narrative to justify charging and prosecution. Families were angered by the speed with which the gang narrative was introduced into proceedings and why this was applied when association was actually founded on living in the same neighbourhood, shared interests such as music and sport, school friendships etc. As such JE was seen as both “lazy” and susceptible to stereotyping and demonisation. Many we heard from had experienced unacceptable treatment at the hands of the media. Commonly this is presented as malign or inaccurate reporting, geared towards racism, blame often attributed to parents and especially mothers. Some felt the media and police worked hand in hand to perpetuate moral panics. Retractions of inaccurate reporting were hard to come by and we also heard how images of families’ children were used repeatedly by local press, sometimes years later, to highlight youth crime or gang violence. The most positive conversations revolved around the value of family relationships as a buffer against the isolation of having a loved one sentenced under JE. Additionally a community of interest has been forged by the work of JENGbA, without which many felt they would have collapsed under the weight of trying to support loved ones and sustain other relationships. JENGbA have provided support, information, understanding and access to a group of people who share campaigning zeal and a desire to put an end to the misuse of a legal doctrine that punishes many more people than ‘just’ those it imprisons.

London: Joint Enterprise Not Guilty by Association,

2024. 28p.

By Jesse Kelley

Texas has become a leader in criminal justice reform by replacing old, “tough on crime” policies with more appropriate “smart on crime” ones. And although this new approach has seen success in the adult system, progress has stalled in the juvenile justice system. Accordingly, if Texas is to reassert its position as a leader in reforms, the best and most effective way is to improve their juvenile justice system by raising the age of criminal majority, by providing a “second look” for those juveniles who were sentenced to life in prison, and by shifting the way the state views and prosecutes youth who have committed serious and violent crimes. 

R STREET SHORTS NO. 83 February 2020 

Washington, DC: R Street, 2020. 5p.

By Matthew Clair & Amanda Woog

This Essay theorizes and reimagines the place of courts in the contemporary struggle for the abolition of racialized punitive systems of legal control and exploitation. In the spring and summer of 2020, the killings of George Floyd, Breonna Taylor, and many other Black and Indigenous people sparked continuous protests against racist police violence and other forms of oppression. Meanwhile, abolitionist organizers and scholars have long critiqued the prison-industrial complex, or the constellation of corporations, media entities, governmental actors, and racist and capitalist ideologies that have driven mass incarceration. But between the police and the prison cell sits the criminal court. Criminal courts are the legal pathway from an arrest to a prison sentence—with myriad systems of control in between, including ones branded as “off-ramps”—and we cannot understand the present crisis without understanding how the criminal courts not only function to legitimate police and funnel people into carceral spaces but also contribute unique forms of violence, social control, and exploitation all their own, revealing the machinations of mass criminalization and injustice operating between the police encounter and the prison cell. Our central argument is that courts—with a focus here on the criminal trial courts and the workgroup of actors within them—function as an unjust social institution; we should therefore work toward abolishing criminal courts and replacing them with other institutions that do not inherently legitimate police, rely on jails and prisons, or themselves operate as tools of racial and economic oppression. Drawing on legal scholarship and empirical social scientific research, Part I describes injustices perpetrated by criminal courts, detailing their role in the present crisis of mass criminalization through legal doctrine, racialized social control and violence, and economic exploitation. In Part II, we describe the contemporary abolition movement, briefly laying out its genesis and three guiding principles we view as typically considered in relation to policing and prisons: (1) power shifting, (2) defunding and reinvesting, and (3) transformation. Part III explores how these principles could operate in relation to the courts, drawing on analysis of existing grassroots efforts as well as offering new possibilities. In the short term, non-reformist reforms could make criminal courts a venue to unmask, and therefore aid in dismantling, police and prisons. Such reforms could complement the broader abolition movement and reduce the churn of people through the system. Ultimately, the goal would be to abolish criminal courts as systems of coercion, violence, and exploitation, and to replace them with other social institutions, such as community-based restorative justice and peacemaking programs while at the same time investing in the robust provision of social, political, and economic resources in marginalized communities.

110 CALIFORNIA LAW REVIEW (Volume 110February 20222022) 45p.

By Deniz Arıtürk , Michele M. Easter , Jeffrey W. Swanson, and Marvin S. Swartz

Despite significant scholarship, research, and funding dedicated to implementing criminal diversion programs over the past two decades, persons with serious mental illness and substance use disorders remain substantially overrepresented in United States jails and prisons. Why are so many U.S. adults with behavioral health problems incarcerated instead of receiving treatment and other support to recover in the community? In this paper, we explore this persistent problem within the context of “relentless unmet need” in U.S. behavioral health (Alegría et al., 2021). 

  The Journal of Law, Medicine & Ethics, 52 (2024): 65-75 

By Rachel Rogers and Susan VanderPlas

We investigate how the use of bullet comparison algorithms and demonstrative evidence may affect juror perceptions of reliability, credibility, and understanding of expert witnesses and presented evidence. The use of statistical methods in forensic science is motivated by a lack of scientific validity and error rate issues present in many forensic analysis methods. We explore what our study says about how this type of forensic evidence is perceived in the courtroom – where individuals unfamiliar with advanced statistical methods are asked to evaluate results in order to assess guilt. In the course of our initial study, we found that individuals overwhelmingly provided high Likert scale ratings in reliability, credibility, and scientifically regardless of experimental condition. This discovery of scale compression - where responses are limited to a few values on a larger scale, despite experimental manipulations - limits statistical modeling but provides opportunities for new experimental manipulations which may improve future studies in this area

Journal of Data Science; Volume 22, Issue 2, 2024, 19p.

By The U.S. Commission on Civil Rights, Arkansas Advisory Committee

On January 19, 2024, the Arkansas Advisory Committee to the U.S. Commission on Civil Rights adopted a proposal to study the right to counsel for indigent defendants in Arkansas. The focus of the Committee’s inquiry was to examine the role public defenders play in ensuring equal protection of the laws in the administration of justice. The Committee considered public investment and funding available to support the right to counsel for those who cannot afford it and the impact such counsel (or the lack thereof) may have on persistent disparities throughout the criminal justice system based on race, color, sex, disability, and national origin.

Washington, DC: USCCR, 2024. 27p.

By Harry Annison, Kate Paradine

In this article we sketch a vision that might guide academic and third sector collaboration. We do so by drawing on a project that involved collaboration with a range of stakeholders, in order to stimulate ongoing discussion about how academics and the third sector might work together to seek positive change. Our findings show that there are keenly felt challenges, but also a sense of resilient optimism. A key finding among our stakeholders was a sense that there is an absence of an overarching shared vision, which was experienced by many of our respondents as consequential. Therefore, in the spirit of constructive provocation we set out such a vision, which was collaboratively developed with our respondents: opening a dialogue, rather than providing a conclusive position.

Howard Journal of Crime and Justice, May 2024 (early view)

By Allison P. Harris

How does racial diversity impact institutional outcomes and (in)equality? Discussions about diversity usually focus on how individuals’ identities shape their behavior, but diversity is a group-level characteristic. Scholars must, therefore, consider the relationship between group composition and the individual decisions that shape institutional outcomes. Using felony data from a large U.S. court system, I explore the relationship between racial diversity among the judges comprising a court and individual judges’ decisions. I find that as the percent of Black judges in a courthouse increases white judges are less likely to render incarceration sentences in cases with Black defendants. Increases in racial diversity decrease the Black–white gap in the probability of incarceration by up to 7 percentage points. However, I find no relationship between judge’s racial identities and disparities in their decisions. This study highlights the importance of conceptualizing diversity as a group characteristic and the relationship between institutional context and outcomes.

American Political Science Review, 2023, 16 pages

By Thomas Frampton

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

 New York University Law Review, 2024, 66 pages

By User Voice

This report brings forth the experiences of people who are diagnosed and self-diagnose as neurodivergent. As the health and criminal justice sectors are learning more about the experiences of neurodivergent service users, User Voice wants to bring their voices front and centre, and to give them real agency. Their quotes are unedited and based on their personal experiences. As part of this study User Voice interviewed 104 service users across 11 prisons nationwide between September 2022 and February 2023. To gain as full a picture as possible, User Voice additionally surveyed 250 neurodivergent service users about their experiences in the criminal justice system. All interviewed or surveyed service users were either diagnosed or self-diagnosed as neurodivergent. To provide as holistic a picture as possible, User Voice spoke to service users about their lives before they were involved in the criminal justice system. In early life, most service users we spoke to came from lower socio-economic backgrounds, over half had experienced abuse and neglect, and one third had been in care. At a crisis point, service users often found that they did not have the needed support networks, and therefore as a result, many had turned to alcohol and drugs which then had led to a life of criminality. Many told us that due to their neurodiversity, they are easily manipulated, coerced, groomed, or susceptible to peer pressure. This report shines a light on the lack of support for people who end up in the criminal justice system. Half of the service users who took part in this report told us they had been diagnosed before they turned 17 years old. Nine had been diagnosed between ages 17 – 26, and 17 when they were older than 27 years. None of them had been told how to live with their conditions. This study finds a criminal justice system ill-prepared to help neurodivergent people. In police custody, only 2 service users had adjustments made around their neurodiversity, whereas in prison, 15 said adjustments had been made. Because of lack of assessments and screening in prisons, we found that only few were receiving the support they needed. We believe that lived experience has a crucial part to play in the formulation of policy and practice in every sector, whether it be criminal justice, health, or education. To benefit those who are neurodivergent, we advocate for more peer support as well employing staff with lived experience in neurodiversity. This would guarantee that services and resources are tailored to the needs of neurodivergent service users. As prison populations grow, a commitment to more neurodiversity qualified health care staff is a must. The prison population would benefit from clinical psychologists in prison as well as better management of medication. This report is a snapshot of people’s lived experience. To drive true reform, we hope that more resources are given to projects that share the voices and experiences of neurodivergent people. To stop neurodivergent people ending up in the criminal justice system, we need to learn from those who have been there.

London: User Voice, 2023. 41p

By Andrew Galley,  Frank Sirotich, and Sara Rodrigues  

This report is based on a scoping review by a team of researchers at the Canadian Mental Health Association (CMHA), who analyzed existing research and policy documents on the mental health care needs of justice-involved persons in Canada’s criminal justice system and in peer jurisdictions. It aims to guide future research and policy development by highlighting what is currently known about this topic and what knowledge gaps may exist in the literature on mental health in the criminal justice system. While it highlights research on the prevalence of mental health problems and mental illness in the criminal justice system, experiences of justice-involved persons with mental health problems and mental illness, and promising practices and principles for mental health care, it is not intended to be a comprehensive review of the literature.   

Ottawa: Mental Health Commission of Canada , 2020. 124p.

By Birth Companions

In this briefing paper we shine a spotlight on the issues faced by women who have contact with both the criminal justice and children’s social care systems during pregnancy and the first two years of their child’s life. We outline the context, highlight key evidence, and share some powerful contributions from our Lived Experience Team who have experienced this ‘dual contact’. 

UK: Birth Companions, 2023. 25p.

By Keith Finlay, Matthew Gross, Carl Lieberman, Elizabeth Luh and Michael Mueller-Smith

We estimate the impact of financial sanctions in the U.S. criminal justice system using nine distinct natural experiments across five states. These regression discontinuities capture a range of enforcement levels ($17–$6,000) and institutional environments, providing robust causal evidence and external validity. We leverage survey and administrative data to consider a variety of short and long-term outcomes including employment, recidivism, household expenditures, spousal spillovers, and other self-reported measures of well-being. We find consistent, robust evidence of precise null effects on the population, including ruling out long-run impacts larger than -$347–$168 in annual earnings and -0.002–0.01 in annual convictions. 

Unpublished paper, 2023. 60p.

By Colette Barry, Chalen Westaby, Mark Coen, Niamh Howlin

Judges are required to suppress and manage their own emotions as well as those of other court users and staff in their everyday work. Previous studies have examined the complex emotional labour undertaken by judges, but there is limited research on the emotion management performed by judges in their interactions with jurors. Drawing on a qualitative study of judge–jury relations in criminal trials in Ireland, we illustrate how judges learn and habituate emotional labour practices through informal and indirect processes. Judges described managing their emotions to demonstrate impartiality and objectivity. Their accounts also underline the importance of balancing presentations of neutrality with empathy, as well as being mindful of the potential emotional toll of jury service on jurors.

Journal of Law and Society Volume 50, Issue 4 p. 477-499

By Criminal Justice Joint Inspectorates: UK

In this report, the Criminal Justice Joint Inspectorates focus on recruitment and retention in the agencies that they inspect. The report draws on evidence from inspections conducted by each of the individual inspectorates, both jointly and singly, of the police, the Crown Prosecution Service (CPS), the Probation and Youth Offending Services and the Prison Service. It sets out the findings from this work, as well as cross-cutting themes. It concludes by highlighting signs of progress as well as ongoing risks to the criminal justice system.

United Kingdom, CJJI. 2024, 19pg